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Friday, February 5, 2010

Really, I am using this as an excuse to dredge up a case that caught my eye before I started this blog.Specifically Julie Kamps v. Fried Frank, Fried being a major law firm (and not a food).In that case, Kamps alleges discrimination based on the fact she was gay, sexual harassment, and a few other issues.The story first caught my eye in this blog post, and today we learned that they have responded, here.Now I don’t want to talk the merits of the case directly; they will probably have a full trial to hash out these issues.Instead I would like to talk about something else.

Sometimes lawyers, or aspiring lawyers, will seek to represent themselves in court in a matter in which their competency is relevant.For instance here, Ms. Kamps is claiming that despite being a “top notch” lawyer, she faced discrimination based on gender and sexual orientation.What I think a lot of lawyers (and aspiring lawyes) fail to understand is that then as they represent themselves, their actual performance in that case because part of the evidence.

For instance, I remember reading of a case where a young man sought accommodations for his disability on some state’s bar exam.The State Bar refused, so he sued, representing himself in court and took the matter all the way up to the state supreme court.There the court decided to make this even simpler.They said, more or less, well, ultimately admission is determined by us, and you have done such an exemplary job representing yourself that we’ll grant you admission to the bar without requiring you to take the exam at all.

Or to take an example from my own life, I once had to sue the LSAC, which runs the Law School Admission Test, which is more or less the SAT of law school.I was attempting to get accommodations for my disabilities and they refused.One tactic my attorney used was to have me write the declaration (its basically similar to an affidavit) that would be submitted at a key point in the case.He explained it like this: “Usually declarations are written by lawyers, and the judge will assume that this one is, too.But as it goes on, the judge will realized that it is too personal to have been written by a lawyer, and it will dawn on him that this is your writing.And he will realize that you more than qualified to be a lawyer, eventually.”My own performance would speak as loud as any legal argment.

And I always consider it a fatal confession of a lack of confidence when a lawyer who is sued for malpractice hires another lawyer to represent him or her.Now, to be fair, sometimes this is at the insistence of malpractice insurance companies.But still, it would seem when it really mattered, the lawyer wanted someone else to represent him.

And this is where Julie Kamps has severely fucked up, by representing herself.She doesn’t have a fool for a client, as the adage goes, she has a fool for a lawyer, who is fouling up what might otherwise be a meritorious suit.You can read her whole Complaint here, but witness just the second paragraph:

"She's a bitch." "Fuck you." "I want you to go down on me." "Can't you wear a women's shirt?" Subjected to comments as blatant as these from Fried Frank partners. and the subtle and not-so-subtle harassing, discriminatory, and retaliatory acts that accompanied them and others like them, so went the days, weeks, months, and years of living hell at Fried, Frank, Harris, Shriver & Jacobson LLP ("Fried Frank" or the "Firm") for the plaintiff, Julie E. Kamps ("Kamps" or "Plaintiff'). Although Plaintiff did not know it at the time, Plaintiffs efforts and top-notch work were never going to be able to overcome the deeply entrenched bias and culture of retaliation that govern work assignments, stalling, promotions, and more at Fried Frank.

(Note: this is based on a cut and paste of a OCR scan of the pdf I linked to, so some mistranscriptions might creep in.)

Yikes!That is terrible, simply terrible.I mean when I read this, it immediately makes me wonder if she wasn’t just fired for being an unbelievably shitty lawyer.I won’t say that this is the worst I have ever seen, but wow, that is shitastic.Its overwrought, overly dramatic, and it takes too long to say what it wants to say.

Now, first, let me say to anyone who is an aspiring lawyer that the single best way to learn how to write how a lawyer really writes (and not some crapulant piss ass imitation of legal writng) is to read Henry Weihofen’s classic Legal Writing Style.

But let’s talk about how this paragraph could be improved, to demonstrate just how terrible her writing was.

First, it was an interesting idea to start off with what was said to her at the beginning of the paragraph. There is a theory that the item in the beginning and end of a paragraph is highlighted in reader’s mind. And the same goes for the beginning and ending of a sentence, to a lesser degree. I tend to believe in that theory, so I think that’s actually a good thing to do. Her problem is that then right after she gets diarrhea of the mouth.

So here is how I might rewrite it:

“She’s a bitch,” “I want you to go down on me” and “Can’t you wear a woman’s skirt”—the plaintiff faced a constant barrage of comments like these, and actions such as being forced to dance with one firm partner while being propositioned, and being physically forced to feel the genitals of one of her coworkers. When the plaintiff complained of this conduct, members of the firm retaliated in words (“Fuck you”) and deeds (e.g. decisions in assignments of personnel based on malice rather than the best interests of the clients). The plaintiff endured all of this for ten years because representatives of the firm told her that regardless of her gender and her sexual preference, she had a square chance to make partner if she proved she deserved it. Upon information and belief, this was not the truth.

Now let me throw a few caveats in there.I didn’t do enough reading into the brief to know what exactly they had done, so I just made stuff up.Second, I didn’t study the complaint long enough to figure out how long it went, so I made that up, too.So these “facts” are not true as far as I know and are only inserted for illustrative purposes.And of course it assumes that you would have established who the parties were in the normal way.

Even then I am not 100% happy with my version. I can’t help but think I can improve it.But its leaps and bound better than that drivel.Let me break down what was wrong with that paragraph line-by-line.Yeah, that is right, I am going to fisk her, but for style not content.

"She's a bitch." "Fuck you." "I want you to go down on me." "Can't you wear a women's shirt?”

You don’t need to say they are blatant. The judge will decide for him/herself whether it is blatant.

...as these from Fried Frank partners, and the subtle and not-so-subtle...

Don’t ever say “not-so-subtle”—yike! If you mean it is not subtle, say something like “blatant” or “unsubtle.” And what does it add to say it was subtle or not? Nothing. In fact it harms your case by making the judge wonder if it was really just in your imagination.

...harassing, discriminatory, and retaliatory acts that accompanied them and others like them, so went the days,...

So she is saying, “subjected to comments like these, so went the days...” Yike! That is just awful writing, period, in any context. It makes me think of the intro to a soap opera. “These are the weeks, months and days of our lives...”Seriously, yike!

...days, weeks, months, and years...

Just say years. And say specifically how many years. Saying weeks, days, months years doesn’t make it sound worse, it makes you sound whiney and overly dramatic. It reads like a teenager’s whiney goth poem. And it gets back to that soap opera style which stinks out loud.

...of living hell...

That is hyperbole. Its generally better to be understated. Further the best way to persuade, especially when you are talking to a judge, is to focus more on showing the judge what you went through rather than describing it. Show, don’t tell, is the mantra. Then maybe at the end of the complaint, after you have detailed all the crap they put you through, say “she considered it a living hell” and maybe not even then.

You don’t need to tell the judge that Kamps is the plaintiff.S/he will figure it out by reading the caption, or the introductory paragraphs when you should establish who the plaintiff is.

Although Plaintiff did not know it at the time, Plaintiff's...

Don’t keep saying “plaintiff.” Say, “her.” Remind the judge this is a human being we are talking about. In fact if you think you can get away with it, refer to her by name, maybe even her first name, although that is usually too obvious. But saying “her” is not too obvious. Humanize your side, dehumanize your opponent. That’s a good idea throughout the trial.

...efforts and top-notch work...

Really? You are going to give yourself such high praise? Because this is not a top-notch complaint. And even if it was, you would still be coming off as a braggert. And it commits another sin: it turns their attention to you. The issue in discrimination for the plaintiff is THEM, their bigoted attitudes and outrageous behavior.

...were never going to be able to...

You could probably shorten that entire phrase “were never going to be able to” with the word “couldn’t,” or “could never.”

That’s just one paragraph. The same level of craptitude is maintained almost constantly throughout the complaint.

And I have also been glossing over a philosophical issue that might lead a good lawyer to change it even more radically. There are two schools of thought on complaints. The first is “be as vague as you can so the other side has very little warning.” The second is, “this complaint is your first chance to talk to the judge and get him/her in your corner. So make it persuasive.” I tend to go in the second camp, but there really are merits to both approaches. So if we were going with the first approach, then just about the whole paragraph would be cut.

So she is supposed to have been a lawyer for so long, and this is the best she can do?Its terrible, so bad that it actually damages her claim.If I was the judge I couldn’t help but wonder if she had any ability at all.And if I was opposing counsel, in a bench trial, I would introduce it as evidence that she was fired because she stank out loud as a lawyer.

All in all, a poor brief, that only serves as an example of what not to do—a “teachable moment.”

About Me

Just a regular, sort of cranky moderately conservative lawyer, living in the greater Washington, D.C. and ruminating on law, life and the local spectator sport known as politics.
Btw, if you want to email me, write to edmd5.20.10 [at] gmail.com. I assume by now you understand that you are supposed to use one of those @ symbols for "[at]."